BANGLADESH: Judiciary Undermines its Own Independence

Twenty sixth session, Agenda
Item 3, General DebatesA written submission to the UN
Human Rights Council by the Asian Legal Resource
Centre

1. The Asian Legal Resource Centre (ALRC)
wishes to bring the status of the judiciary and legal
profession of Bangladesh to the attention of the UN Human
Rights Council.

2. Bangladesh has been Member of the Human
Rights Council virtually since its formation. The country
has been party to two international Covenants and eight
Conventions. Being a party to the International Covenant on
Civil and Political Rights (ICCPR), Bangladesh is obliged to
ensure the independence of the judiciary. It is mandatory
for Bangladesh to take administrative, legislative, and
judicial measures to implement the rights enshrined in the
ICCPR.

3. In Article 22, the country's Constitution
enshrines that: "he State shall ensure the separation of the
judiciary from the executive organs of the State." The
country's jurisprudence also directs the government to
ensure the independence of the judiciary. In a landmark
judgment related to the Masdar Hossain case, the Supreme
Court of Bangladesh emphasised the 'independence' and
'impartiality' of the judiciary. The Court gave 12 specific
directives to the government about how the independence of
the judiciary shall be ensured. One of the directives of the
judgment states the following:"It is directed that under
Article 133 , law or rules or executive orders having the
force of Rules relating to posting, promotion, grant of
leave, discipline (except suspension and removal),
allowances, pension (as a matter of right, not favour) and
other terms and conditions of service, consistent with
Article 116 and 116A, as interpreted by us, be enacted or
framed or made separately for the judicial service and
magistrates exercising judicial functions keeping in view of
the constitutional status of the said service."4. The
government still controls the recruitment, posting, and
promotion of judicial officers. Instead of establishing a
separate secretariat for the judiciary, as per the Court's
judgment, the Ministry of Law, Justice and Parliamentary
Affairs continues to control the judiciary. Political
loyalty to the ruling regime is deemed the key qualification
for promotion and lucrative postings of judicial officers.
Elevation to the higher judiciary, from the subordinate
judiciary and the pool of legal practitioners, takes place
in a way that fulfils the political purposes of the
government. Relations with the President, the ruling party
leaders, the ministers, and the parliamentarians play a
decisive role in the recruitment, posting, and promotion of
judges.

5. The Supreme Court, which directed the
government to ensure independence of the judiciary, now acts
as a tool for the government, harassing critics of the
regime. The country's law-enforcement agencies –
especially the Rapid Action Battalion (RAB) and the police
– have been busy abducting and disappearing citizens. But,
the Supreme Court has not been able to provide any legal
redress to the families of victims of enforced
disappearance, i.e. those that could afford the high
expenditure of litigation with or without help from human
rights organisations. The entire institution of the
judiciary has been complicit in the ongoing gross abuse of
human rights.

6. Take the example of Mr. Imam Hossain
Badal, detained by RAB-2, so ransom could be collected from
his family. Human rights organisation Odhikar's Director
A.S.M. Nasiruddin Elan and Badal's father Mr. Shahjahan
filed a habeas corpus writ petition with a High Court
Division Bench. The High Court ruled against the government
including the Secretary to the Home Ministry, the Inspector
General of Police, and the Director General of the RAB,
asking them to respond to the Rule within four
weeks.

7. The Home Ministry invited the victim's father to
the ministry. In the name of an inquiry, the bureaucrats
threatened Mr. Shahjahan with further consequence if he were
to continue to pursue his son's disappearance case. Later,
the Attorney General submitted RAB's statement – denying
the paramilitary's involvement in disappearing Badal –
before the Court. The proceedings have since stalled. The
High Court has performed its 'judicial duty' by accepting
the RAB's version of events via the Attorney General, who
has acted as a postman for the law-enforcement agencies in
addition to his usual role of slave to the ruling
regime.

8. The Magistracy and Sessions Courts have been
endorsing torture by granting 'police remand' en mass. On
one hand, the Bangladesh Police has a reputation for
fabricating charges against innocent poor people and
pro-opposition supporters; they fabricate cases for
extortion and to serve political masters. On the other hand,
criminal investigation is synonymous with remand and torture
in Bangladesh. The poor people falsely implicated in
criminal cases on the basis of fabrications are unable to
afford to challenge the decisions of the Magistrate's Courts
beyond the Sessions Court, which itself often denies
remedies to victims regarding unjustified police remand. The
rights to liberty and personal freedom of the poor victims
of fabricated charges are systematically denied in
Bangladesh throughout the criminal justice institutional
process.

9. Government persecution is implemented via
judicial process in Bangladesh. The Cyber Crimes Tribunal
began prosecuting human rights defenders Adilur Rahman Khan
and A.S.M. Nasiruddin Elan, Secretary and Director of
Odhikar respectively, for publishing a fact-finding report
on extrajudicial killing of demonstrators of a pro-Islamic
organisation on May 5-6, 2013. Without a credible
investigation report and without supplying a copy of the
police report, the Cyber Crimes Tribunal framed charges
against these two prominent human rights defenders. The
trial is pending following an order of the High Court. The
ALRC has been informed that the Attorney General's Office
has filed a petition for revoking the High Court's stay
order in the case against the human rights
defenders.

10. Another recent example related to Daily
Amar Desh, a vernacular pro-opposition national newspaper.
On 11 April 2013, the government closed down the printing
press of the newspaper. The police arrested its Editor
Mahumudr Rahman from his office. The police prevented the
publication of the newspaper from an alternative printing
press, although the law permits such publication with a
notification to the administrative authorities of the
government. The Amar Desh Publications Limited filed a writ
petition no. 5460 of 2013 on 27 May 2013 with the Division
Bench comprising Justice Mirza Hossain Haider and Mohammad
Khurshid Alam Sarker. The writ came up in the cause list of
the Division Bench; however, the Judges did not hear the
writ for more than two months.

11. The petitioner's
lawyers then shifted the writ to a Vacation Bench comprising
Justice M. Enaytur Rahim and A.B.M. Altaf Hossain. The
Vacation Bench heard the case on 27 August 2013. It issued
Rule against the government. However, the Court did not pass
any 'ad-interim order' about publishing of the newspaper.
Later, the petitioner, on 22 September 2013, moved the case
to another Bench comprising Justice Nayeema Haider and
Justice Jafar Ahmed. The petitioner sought 'ad-interim
order' for publishing the newspaper. On 2 October, the Court
heard the case and said that the same matter should be on
top of the cause list on the following day for hearing, and
that the Court would dispose the matter. On the following
day, 3 October, the case appeared at the bottom of the cause
list; the Court did not hear it. Later, the Chief Justice
dissolved the particular Bench.

12. The petitioner, then,
brought the case to a Bench comprising Justice Salma Masud
Chowdhury and Justice Mohamamd Habibul Gani. On 26 January
2014, the petitioner's lawyer mentioned the matter before
the Bench seeking a hearing date. The Court set 27 January
as a date for fixing a hearing for the case. Subsequently,
13 March 2014 was fixed as the date of hearing. In fact, the
Court did not hear the matter and has not heard it since.
The write petition number 5460 comes to the cause list every
Thursday at the bottom of the list. The hearing does not
take place. On 22 May 2014, the case was 180th in the cause
list. The Editor of Amar Desh, Mahmudur Rahman, remains in
prison, in dozens of fabricated cases, without trial since
11 April 2013. The newspaper is shut down for the same
period without any lawful reason. Thus, by denying a proper
hearing to the case, the judiciary has endorsed government
repression for those that criticise the regime.

13. The
Bangladesh International Crimes Tribunal (ICT), established
for trying the crimes against humanity committed in 1971,
implicated a number of journalists and members of the civil
society for exposing inconsistencies in its adjudications.
In 2013, the ICT-1 issued 'contempt of court' Rule against
Mahmudur Rahman Manna, the anchor of a talk show, and two
discussants, Dr. Zafarullah Chowdhury and Mahfuz Ullah, for
expressing critical comments. They spoke about the ICT-1
barring the defence witnesses of one of the war crimes
accused from giving deposition. One of the discussants
stated that, out of four defence witnesses, two were sitting
judges of the judiciary. The Chief Justice did not give
permission to these judges to depose when the judges sought
formal permission from relevant authority. They remarked
that such bar on defence witness might hamper fair
trial.

14. Channel24, a private TV channel of Bangladesh,
broadcast the programme in September 2013. The prosecutors
of the Tribunal brought the charge of contempt.
Subsequently, the ICT-1 summoned the discussants and the
officials of the TV channel to appear before it. After a
number of hearings, on 30 April 2014, ICT-1 announced that
it would pronounce its final order about the 'contempt rule'
on 12 June 2014.

15. Instead of upholding the normative
principles of justice, the judiciary is getting intolerant
of its critics, who point to judicial misconduct of judges
and attorneys in Bangladesh. The higher judiciary uses
'contempt of court' as a weapon to hide its own
non-juridical actions.

16. Lawyers in Bangladesh are
polarised along political lines. Instead of helping the
judiciary uphold the rule of law and enhance professional
integrity, lawyers have been busy defending respective
political party interests. The pro-ruling party lawyers have
started a 'crusade' against the targets of the regime,
regardless of the legality or justification for such a
position. The pro-opposition lawyers only gather together
when their high profile leaders' cases come up for hearing.
They merely show their faces for widening opportunity for
personal gains in case those they support return to office
in the near future. The fate of the ordinary poor litigants,
who fall prey to the police, paramilitary forces like the
Rapid Action Battalion, and ruling party cadres, remains
bleak.

17. The ALRC reiterates that Bangladesh's judiciary
lacks judicial mindset, commitment, and efficiency. The
judicial institution does not have the moral, intellectual,
and infrastructural ability to administer justice. The
criminal justice apparatus survives as a facade to cover the
criminality of the rulers. The nexus between corruption and
politics has engulfed the entire state apparatus. The
culture of impunity sustains, as a priority, above any
obligation to justice and dignity. The legislature, the
executive, and the judiciary, in fact, join hands to deny
fundamental human rights and undermine the rule of
law.

18. The ALRC urges the Human Rights Council and the
international community to concentrate effort on failed
criminal justice institutions. Without strengthening the
institutions and making them effective for addressing the
plights of litigants and the people at large, the existence
of human rights can only be possible in our imagination. The
UN human rights mechanisms require to shift strategy and
focus to help realize the rights – based on the notion of
justice – of the
people.

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